Schuler v. Eco Lab (SAC)

Case 3:10-cv-02255-JAH -NLS Document 17 Filed 02/23/11 Page 1 of 48
1 BLUMENTHAL, NORDREHAUG & BHOWMIK

Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 2255 Calle Clara
La Jolla, CA 92037
4 Telephone: (858)551-1223
Facsimile: (858) 551-1232
5 Website: www.bamlawca.com
6 Attorneys for Plaintiffs
7
8
9
10
UNITED STATES DISTRICT COURT
11
SOUTHERN DISTRICT OF CALIFORNIA
12
13
14 ROBERT SCHULER JR. and ROBERT CASE No. 3:10-cv-02255-JAH -NLS
ZANIN, individually, and on behalf of all
15 persons similarly situated, SECOND AMENDED CLASS AND
COLLECTIVE ACTION
16 COMPLAINT FOR:
Plaintiffs, 1. UNFAIR COMPETITION IN
17 VIOLATION OF CAL. BUS. & PROF.
vs. CODE §§ 17200 et seq.;
18 2. FAILURE TO PAY OVERTIME
ECOLAB, INC., COMPENSATION IN VIOLATION OF
19 CAL. LAB. CODE §§ 510, 515.5, 551,
552, 1194 AND 1198, et seq.;
20 3. FAILURE TO PROVIDE
Defendant. ACCURATE ITEMIZED STATEMENTS
21 IN VIOLATION OF CAL. LAB. CODE §
226;
22 4. FAILURE TO PAY OVERTIME
COMPENSATION IN VIOLATION OF
23 29 U.S.C. §§ 201, et seq.; and,
5. LABOR CORD PRIVATE
24 ATTORNEY GENERAL ACT [LABOR
CODE § 2698 ET. SEQ.].
25 DEMAND FOR A JURY TRIAL
26 Judge: Hon. John A. Houston
27
28
SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

10cv2255-JAH-NLS
1 Plaintiff Robert Schuler Jr. and Plaintiff Robert Zanin ("PLAINTIFFS") on behalf of
2 themselves and all other similarly situated current and former employees, allege on information
3 and belief, except for their own acts and knowledge, the following:
4 THE PARTIES
5 1. Ecolab, Inc. is a global developer and marketer of premium cleaning, sanitizing,
6 pest elimination, maintenance and repair products and services for the world’s hospitality,
7 institutional and industrial markets. Ecolab, Inc. hereinafter also referred to as "ECOLAB" or
8 "DEFENDANT" employs more than 25,000 individuals worldwide with 14,000 sales and
9 service personnel. Its customers, located in over 160 countries, include, hotels, restaurants,
10 health and educational facilities, convenience and grocery stores, commercial and institutional
11 laundries, food and beverage processors and car washes. The corporation is headquartered in
12 St. Paul, Minnesota, and operates in three segments: United States Cleaning & Sanitizing
13 Segment, United States Other Services Segment and International Segment.
14 2. ECOLAB was incorporated in 1924 under the laws of Delaware and maintains
15 its principal place of business in St. Paul, Minnesota. ECOLAB also operates in California
16 leasing commercial equipment and providing regular maintenance and repair services to its
17 customers. The institutional division at ECOLAB is responsible in relevant part, for providing
18 these services to the food service and hospitality industries and ensuring that the services are
19 provided according to specified ECOLAB standards.
20 3. As part of ECOLAB’s business, DEFENDANT employs individuals whose
21 primary job duty is repairing and providing maintenance on leased commercial machines of
22 ECOLAB. These employees have the job titles of "Route Manager," "Route Sales Manager,"
23 "Sales Route Specialist," "Service Sales Route Specialist," "Service Installer" and "Service
24 Professional." Collectively, all employees in these positions and who perform this job duty are
25 referred to herein as "Service Employees." This Action is brought on behalf of the
26 PLAINTIFFS and all those employees of DEFENDANT in California who worked for
27 DEFENDANT as a Service Employee during the CLASS PERIOD ("CLASS" or "Class
28 Members").

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1 4. Plaintiff Robert Schuler Jr. ("PLAINTIFF") was employed by DEFENDANT

2 in California as a Territory Manager from July 2002 to May 2004, and has been employed as
3 a Route Manager/Route Sales Manager since April 2005 and currently works in the position
4 of Route Sales Manager for DEFENDANT.
5 5. Plaintiff Robert Zanin ("PLAINTIFF") has been employed by DEFENDANT
6 in California as a Service Sales Route Specialist since February 2007 and currently works in
7 that position for DEFENDANT.
8 6. The position of Route Manager/Route Sales Manager and Service Sales Route
9 Specialist was represented by DEFENDANT to the PLAINTIFFS and the other Service
10 Employees as an exempt and a salaried position.
11 7. For DEFENDANT’s business, the Class Members functioned as working
12 members on DEFENDANT’s service staff. As defined by DEFENDANT’s comprehensive
13 corporate policies and procedures, the primary job duty of the Class Members employed by
14 ECOLAB was and is to provide repair, maintenance, and installation services on leased
15 commercial machines in accordance with DEFENDANT’s established specific procedures
16 and protocols which govern and control every aspect of the work performed by the Service
17 Employees. The primary job duty of these Class Members was not and is not to make sales
18 and/or obtain orders or contracts for services. ECOLAB’s standardized procedures mirror
19 the realities of the workplace evidencing a uniformity of work among the Service Employees
20 and negate any exercise of independent judgment and discretion as to any matter of
21 significance and any customary and regular engagement in sales-related activity.
22 8. The work schedule for Service Employees was set by DEFENDANT.
23 Generally, the Class Members work twelve (12) to fourteen (14) hours each workday and
24 twenty (20) to thirty (30) hours of overtime each workweek.
25 9. DEFENDANT has not established an alternative workweek election for
26 Service Employees for twelve (12) to fourteen (14) hour workdays.
27 10. PLAINTIFFS and the other Service Employees were not provided with
28 overtime compensation and other benefits required by law as a result of being classified as

1 "exempt" by DEFENDANT.
2 11. PLAINTIFFS bring this Class Action on behalf of themselves and a California
3 Class consisting of all individuals who are or previously were employed by Defendant
4 Ecolab, Inc. repairing and providing maintenance on leased commercial machines in
5 California (the "CALIFORNIA CLASS") during the period beginning on the date four (4)
6 years before the filing of this Action and ending on the date as determined by the Court (the
7 "CALIFORNIA CLASS PERIOD").
8 12. As a matter of company policy, practice, and procedure, DEFENDANT
9 has unlawfully, unfairly and/or deceptively classified every Service Employee as exempt
10 based on job title alone, failed to pay the required overtime compensation, and otherwise
11 failed to comply with all applicable labor laws with respect to these Service Employees.
12 13. The agents, servants, and/or employees of DEFENDANT and each of
13 them acting on behalf of DEFENDANT acted within the course and scope of his, her or its
14 authority as the agent, servant, and/or employee of DEFENDANT, and personally
15 participated in the conduct alleged herein on behalf of DEFENDANT with respect to the
16 conduct alleged herein. Consequently, DEFENDANT is jointly and severally liable to the
17 PLAINTIFFS and the other members of the CALIFORNIA CLASS, for the loss sustained as
18 a proximate result of the conduct of DEFENDANT’s agents, servants, and/or employees.
19
20 THE CONDUCT
21 14. The primary job duty required of the Service Employees as defined by
22 DEFENDANT is executed by the Service Employees through the performance of non-
23 exempt labor within a defined skill set, is the repairing, maintaining, and installing of leased
24 commercial machines in accordance with established protocol and performing tasks as
25 directed or assigned by DEFENDANT.
26 15. Although the PLAINTIFFS and the Service Employees primarily performed
27 the non-exempt labor described herein above as set forth by DEFENDANT in the
28 company’s comprehensive and uniform corporate policies, procedures and protocols,

1 DEFENDANT instituted a blanket classification policy, practice and procedure by which all
2 of the Service Employees were classified as exempt from overtime compensation, meal
3 breaks and rest breaks. By reason of this uniform exemption practice, policy and procedure
4 applicable to the PLAINTIFFS and all the other Service Employees who performed this
5 non-exempt labor, DEFENDANT committed acts of unfair competition in violation of the
6 California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 (the "UCL"), by
7 engaging in a company-wide policy, practice and procedure which failed to properly classify
8 the PLAINTIFFS and the other Service Employees and thereby failed to pay them overtime
9 wages for documented overtime hours worked and provide them with meal breaks and rest
10 breaks. The proper classification of these employees is DEFENDANT’s burden. As a result
11 of DEFENDANT’s intentional disregard of the obligation to meet this burden,
12 DEFENDANT failed to pay all required overtime compensation for work performed by the
13 members of the CALIFORNIA CLASS and violated the California Labor Code and
14 regulations promulgated thereunder as herein alleged. In addition, to the extent that the
15 Service Employees processed sales orders for machine parts and chemicals, DEFENDANT
16 failed to pay the Service Employees additional wages for processing these sales orders made
17 by consumers for DEFENDANT’s benefit. DEFENDANT’s uniform policy and practice
18 was and is to pay the Service Employees additional wages for processing consumer sales
19 orders for machine parts and chemicals. However, DEFENDANT violated and continues to
20 violate its own company policy and practice by failing to pay these employees additional
21 wages for processing consumer sales orders. DEFENDANT also failed to provide all of the
22 legally required off-duty meal and rest breaks to the PLAINTIFFS and the other Service
23 Employees as required by the applicable Wage Order and Labor Code.
24 16. DEFENDANT, as a matter of law, has the burden of proving that (a)
25 employees are properly classified as exempt and that (b) DEFENDANT otherwise complies
26 with applicable laws. Other than the initial classification of the PLAINTIFFS and the other
27 Service Employees as exempt from being paid overtime based on job title alone,
28 DEFENDANT had no business policy, practice, or procedure to ensure that the

1 PLAINTIFFS and the other Service Employees were properly classified as exempt, and in
2 fact, as a matter of corporate policy erroneously and unilaterally classified all of the Class
3 Members as exempt based on job title alone.
4 17. During their employment with DEFENDANT, the PLAINTIFFS and the
5 other Service Employees, primarily performed non-exempt job duties, but were nevertheless
6 classified by DEFENDANT as exempt from overtime pay and worked more than eight (8)
7 hours a day, forty (40) hours a week, and/or on the seventh (7th) consecutive day of a
8 workweek and also regularly remained on-call during off hours in the evenings and on
9 weekends.
10 18. PLAINTIFFS and the other Service Employees employed by DEFENDANT
11 were not primarily engaged in work of a type that was or now is directly related to the
12 making of sales, management or general business operations of the employer’s customers,
13 when giving these words a fair but narrow construction. PLAINTIFFS and the other Service
14 Employees employed by DEFENDANT were also not primarily engaged in work of a type
15 that was or now is performed for the purpose of obtaining orders or contracts for services for
16 DEFENDANT. PLAINTIFFS and the other Service Employees employed by
17 DEFENDANT were also not primarily engaged in work of a type that was or now is
18 performed more than half the time actually selling, including sales-related activities.
19 PLAINTIFFS and the other Service Employees employed by DEFENDANT were also not
20 primarily engaged in work of a type that was or now is performed at the level of the policy
21 or management of DEFENDANT. PLAINTIFFS and the other Service Employees
22 employed by DEFENDANT were also not primarily engaged in work requiring knowledge
23 of an advanced type in a field or science or learning customarily acquired by a prolonged
24 course of specialized intellectual instruction and study, but rather their work primarily
25 involves the performance of routine mental, manual, and/or physical processes.
26 PLAINTIFFS and the other Service Employees employed by DEFENDANT were also not
27 primarily engaged in work that is predominantly intellectual and varied in character, but
28 rather is routine mental, manual, mechanical, and/or physical work that is of such character

1 that the output produced or the result accomplished can be standardized in relation to a given
2 period of time. The work of a Service Employee of DEFENDANT was work wherein the
3 PLAINTIFFS and the members of the CALIFORNIA CLASS were primarily engaged in the
4 day-to-day operations of repairing and providing maintenance services on leased
5 commercial machines in strict accordance with the protocols, policies and operations
6 established by DEFENDANT.
7 19. The primary job duty of the PLAINTIFFS and the other Service Employees
8 employed by DEFENDANT was and is repairing and providing maintenance on leased
9 commercial machines of ECOLAB. As a result, the PLAINTIFFS and the other Service
10 Employees employed by DEFENDANT were primarily engaged in work that falls outside
11 the scope of the "outside salesperson" exemption and should have been properly classified as
12 non-exempt employees.
13 20. PLAINTIFFS and all the members of the CALIFORNIA CLASS were and are
14 uniformly classified and treated by DEFENDANT as exempt at the time of hire and
15 thereafter, DEFENDANT failed to take the proper steps to determine whether the
16 PLAINTIFFS, and the members of the CALIFORNIA CLASS, were properly classified
17 under the applicable Industrial Welfare Commission Wage Order (Wage Order 1-2001
18 and/or Wage Order 4-2001) and Cal. Lab. Code §§ 510, et seq. as exempt from applicable
19 federal and state labor laws. Since DEFENDANT affirmatively and wilfully misclassified
20 the PLAINTIFFS and the members of the CALIFORNIA CLASS in compliance with
21 California labor laws, DEFENDANT’s practices violated and continue to violate California
22 law. In addition, DEFENDANT acted deceptively by falsely and fraudulently representing
23 to the PLAINTIFFS and each member of the CALIFORNIA CLASS that they were exempt
24 from overtime pay when DEFENDANT knew or should have known that this statement was
25 false and not based on known facts. DEFENDANT also acted unfairly by violating
26 California law, and as a result of this policy and practice, DEFENDANT also violated the
27 UCL. In doing so, DEFENDANT cheated the competition by paying the CALIFORNIA
28 CLASS less than the amount competitors paid who complied with the law and cheated the

1 CALIFORNIA CLASS by not paying them in accordance with California law.

2 21. DEFENDANT failed to provide and still fails to provide the PLAINTIFFS and
3 the other Service Employees with a wage statement in writing that accurately sets forth gross
4 wages earned, all applicable hourly rates in effect during the pay period and the
5 corresponding number of hours worked at each hourly rate by the PLAINTIFFS and the
6 other Service Employees. This conduct violates California Labor Code § 226. The pay
7 stub also does not accurately display anywhere the PLAINTIFFS’ and the other Service
8 Employees’ overtime hours and applicable rates of overtime pay for the pay period.
9 22. By reason of this uniform conduct applicable to the PLAINTIFFS and all the
10 CALIFORNIA CLASS members, DEFENDANT committed acts of unfair competition in
11 violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 (the
12 "UCL"), by engaging in a company-wide policy and procedure which failed to correctly
13 classify the PLAINTIFFS and the CALIFORNIA CLASS of Service Employees as non-
14 exempt. The proper classification of these employees is DEFENDANT’s burden. As a
15 result of DEFENDANT’s intentional disregard of the obligation to meet this burden,
16 DEFENDANT failed to properly calculate and/or pay all required overtime compensation
17 for work performed by the members of the CALIFORNIA CLASS and violated the
18 applicable Wage Order, the California Labor Code and the regulations promulgated
19 thereunder as herein alleged.
20
21 THE UCL REMEDIES
22 23. As a result of DEFENDANT’s UCL violation, the PLAINTIFFS, on behalf
23 of themselves and on behalf of the CALIFORNIA CLASS, seek restitutionary disgorgement
24 of DEFENDANT’s ill-gotten gains into a fluid fund in order to provide restitution of all the
25 money that DEFENDANT was required by law to pay, but failed to pay, to the
26 PLAINTIFFS and all the other CALIFORNIA CLASS members. PLAINTIFFS also seek
27 all other relief available to them and the other Service Employees located in California under
28 California law. PLAINTIFFS also seek declaratory relief finding that the employment

1 practices and policies of DEFENDANT violate California law.

2
3 THE CALIFORNIA CLASS
4 24. PLAINTIFFS bring the First Cause of Action for Unfair, Unlawful and
5 Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200 et seq. (the
6 "UCL") as a Class Action, pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3), on behalf of a
7 California Class, defined as all individuals who are or previously were employed by
8 Defendant Ecolab, Inc. as a Service Employee as hereinabove defined in California during
9 the period beginning on the date four (4) years before the filing of this Action and ending on
10 the date as determined by the Court ("CALIFORNIA CLASS").
11 25. To the extent equitable tolling operates to toll claims by the CALIFORNIA
12 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted
13 accordingly.
14 26. DEFENDANT, as a matter of corporate policy, practice and procedure,
15 and in violation of the applicable Labor Code, Industrial Welfare Commission ("IWC")
16 Wage Order Requirements, and the applicable provisions of California law, intentionally,
17 knowingly, and wilfully, engaged in a practice whereby DEFENDANT unfairly, unlawfully,
18 and deceptively instituted a practice to ensure that the employees employed in a Service
19 Employee position were not properly classified as non-exempt from the requirements of
20 California Labor Code §§ 510, et seq. In addition, to the extent that the Service Employees
21 processed orders for consumers for machine parts and chemicals, DEFENDANT failed to
22 pay the Service Employees additional wages for processing these orders made by
23 consumers.
24 27. DEFENDANT has the burden of proof that each and every employee is
25 properly classified as exempt from the requirements of the Cal. Lab. Code §§ 510, et seq.
26 DEFENDANT, however, as a matter of uniform and systematic policy and procedure had in
27 place during the CALIFORNIA CLASS PERIOD and still has in place a policy and practice
28 that misclassifies the members of the CALIFORNIA CLASS as exempt. DEFENDANT’s

1 uniform policy and practice in place at all times during the CALIFORNIA CLASS PERIOD
2 and currently in place is to systematically classify each and every CALIFORNIA CLASS
3 member as exempt from the requirements of the California Labor Code §§ 510, et seq. This
4 common business practice applicable to each and every CALIFORNIA CLASS member can
5 be adjudicated on a class-wide basis as unlawful, unfair, and/or deceptive under Cal.
6 Business & Professions Code §17200 et seq. (the " UCL") as causation, damages, and
7 reliance are not elements of this claim.
8 28. At no time before, during or after the PLAINTIFFS’ employment with
9 DEFENDANT was any Service Employee reclassified as non-exempt from the applicable
10 requirements of California Labor Code §§ 510, et seq. after each CALIFORNIA CLASS
11 member was initially, uniformly, and systematically classified as exempt upon being hired.
12 29. Any individual declarations of any employees offered at this time purporting
13 to indicate that one or more Service Employee may have been properly classified is of no
14 force or affect absent contemporaneous evidence that DEFENDANT’s uniform system did
15 not misclassify the PLAINTIFFS and the other Service Employees as exempt pursuant to
16 Cal. Lab. Code §§ 510, et seq. Absent proof of such a contemporaneous system,
17 DEFENDANT’s business practice is uniformly unlawful, unfair and/or deceptive under the
18 UCL and may be so adjudicated on a class-wide basis. As a result of the UCL violations,
19 the PLAINTIFFS and the CALIFORNIA CLASS members are entitled to compel
20 DEFENDANT to provide restitutionary disgorgement of their ill-gotten gains into a fluid
21 fund in order to restitute these funds to the PLAINTIFFS and the members of the
22 CALIFORNIA CLASS according to proof.
23 30. The CALIFORNIA CLASS is so numerous that joinder of all Service
24 Employees, is impracticable.
25 31. Common questions of law and fact exist as to members of the CALIFORNIA
26 CLASS, including, but not limited, to the following:
27 (a) Violating the California Unfair Competition Laws, Cal. Bus. & Prof.
28 Code § 17200 et seq. (the "UCL"), by unlawfully, unfairly and/or

1 deceptively having in place company policies, practices and procedures

2 that uniformly misclassified the PLAINTIFFS and the members of the
3 CALIFORNIA CLASS as exempt;
4 (b) Committing an act of unfair competition in violation of the UCL, by
5 unlawfully, unfairly, and/or deceptively failing to have in place a
6 company policy, practice and procedure that accurately determined the
7 amount of working time spent by the PLAINTIFFS and the members of
8 the CALIFORNIA CLASS performing non-exempt labor;
9 (c) Committing an act of unfair competition in violation of the UCL, by
10 having in place a company policy, practice and procedure that failed to
11 reclassify as non-exempt those members of the CALIFORNIA CLASS
12 whose actual job duties are primarily comprised of non-exempt job
13 functions;
14 (d) Committing an act of unfair competition in violation of the UCL, by
15 violating Cal. Lab. Code §§ 510, et seq. by failing to pay the correct
16 overtime pay to the PLAINTIFFS and the members of the
17 CALIFORNIA CLASS who were improperly classified as exempt, and
18 retaining the unpaid overtime to the benefit of DEFENDANT;
19 (e) Committing an act of unfair competition in violation of the UCL, by
20 failing to pay the PLAINTIFFS and the members of the CALIFORNIA
21 CLASS who were improperly classified as exempt, additional wages
22 for processing sales orders for DEFENDANT’s machine parts and
23 chemicals;
24 (f) Committing an act of unfair competition in violation of the UCL, by
25 failing to provide mandatory meal and/or rest periods to the
26 PLAINTIFFS and the Class Members; and,
27 (g) Committing an act of unfair competition in violation of the UCL, by
28 violating Cal. Lab. Code § 226 by failing to provide the PLAINTIFFS
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1 and the members of the CALIFORNIA CLASS with an accurate

2 itemized statement in writing showing the gross wages earned, the net
3 wages earned, all applicable hourly rates in effect during the pay period
4 and the corresponding number of hours worked at each hourly rate by
5 the employee.
6 32. This Class Action meets the statutory prerequisites for the maintenance of a
7 Class Action as set forth in Fed. R. Civ. Proc. 23(b)(2) and/or (3), in that:
8 (a) The persons who comprise the CALIFORNIA CLASS exceed 100
9 persons and are therefore so numerous that the joinder of all such
10 persons is impracticable and the disposition of their claims as a class
11 will benefit the parties and the Court;
12 (b) Nearly all factual, legal, statutory, and declaratory relief issues that are
13 raised in this Complaint are common to the CALIFORNIA CLASS will
14 apply uniformly to every member of the CALIFORNIA CLASS;
15 (c) The claims of the representative PLAINTIFFS are typical of the claims
16 of each member of the CALIFORNIA CLASS. PLAINTIFFS, like all
17 other members of the CALIFORNIA CLASS, were initially classified
18 as exempt upon hiring based on the defined corporate policies and
19 practices and labored under DEFENDANT’s systematic procedure that
20 failed to properly classify the PLAINTIFFS and the members of the
21 CALIFORNIA CLASS and pay them additional wages for processing
22 sales orders. PLAINTIFFS sustained economic injury as a result of
23 DEFENDANT’s employment practices. PLAINTIFFS and the
24 members of the CALIFORNIA CLASS were and are similarly or
25 identically harmed by the same unlawful, deceptive, unfair and
26 pervasive pattern of misconduct engaged in by DEFENDANT by
27 deceptively advising all Service Employees that they were exempt from
28 overtime wages based on the defined corporate policies and practices,
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1 and unfairly failing to pay overtime to these employees who were

2 improperly classified as exempt.
3 (d) The representative PLAINTIFFS will fairly and adequately represent
4 and protect the interest of the CALIFORNIA CLASS, and have
5 retained counsel who are competent and experienced in Class Action
6 litigation. There are no material conflicts between the claims of the
7 representative PLAINTIFFS and the members of the CALIFORNIA
8 CLASS that would make class certification inappropriate. Counsel for
9 the CALIFORNIA CLASS will vigorously assert the claims of all
10 employees in the CALIFORNIA CLASS.
11 33. In addition to meeting the statutory prerequisites to a Class Action, this Action
12 is properly maintained as a Class Action pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3),
13 in that:
14 (a) Without class certification and determination of declaratory, statutory
15 and other legal questions within the class format, prosecution of
16 separate actions by individual members of the CALIFORNIA CLASS
17 will create the risk of:
18 1) Inconsistent or varying adjudications with respect to individual
19 members of the CALIFORNIA CLASS which would establish
20 incompatible standards of conduct for the parties opposing the
21 CALIFORNIA CLASS; and/or,
22 2) Adjudication with respect to individual members of the
23 CALIFORNIA CLASS which would as a practical matter be
24 dispositive of interests of the other members not party to the
25 adjudication or substantially impair or impede their ability to
26 protect their interests.
27 (b) The parties opposing the CALIFORNIA CLASS have acted or refused
28 to act on grounds generally applicable to the CALIFORNIA CLASS,
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1 making appropriate class-wide relief with respect to the CALIFORNIA

2 CLASS as a whole in that DEFENDANT uniformly classified and
3 treated the Service Employees as exempt and, thereafter, uniformly
4 failed to take proper steps to determine whether the Service Employees
5 were properly classified as exempt, and thereby denied these employees
6 overtime wages as required by law;
7 1) With respect to the First Cause of Action, the final relief on
8 behalf of the CALIFORNIA CLASS sought does not relate
9 exclusively to restitution because through this claim the
10 PLAINTIFFS seek declaratory relief holding that
11 DEFENDANT’s policies and practices constitute unfair
12 competition, along with incidental equitable relief as may be
13 necessary to remedy the conduct declared to constitute unfair
14 competition;
15 (c) Common questions of law and fact exist as to the members of the
16 CALIFORNIA CLASS, with respect to the practices and violations of
17 California law as listed above, and predominate over any question
18 affecting only individual members, and a Class Action is superior to
19 other available methods for the fair and efficient adjudication of the
20 controversy, including consideration of:
21 1) The interests of the members of the CALIFORNIA CLASS in
22 individually controlling the prosecution or defense of separate
23 actions in that the substantial expense of individual actions will
24 be avoided to recover the relatively small amount of economic
25 losses sustained by the individual CALIFORNIA CLASS
26 members when compared to the substantial expense and burden
27 of individual prosecution of this litigation;
28 2) Class certification will obviate the need for unduly duplicative
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1 litigation that would create the risk of:

2 A. Inconsistent or varying adjudications with respect to
3 individual members of the CALIFORNIA CLASS, which
4 would establish incompatible standards of conduct for
5 DEFENDANT; and/or,
6 B. Adjudications with respect to individual members of the
7 CALIFORNIA CLASS would as a practical matter be
8 dispositive of the interests of the other members not
9 parties to the adjudication or substantially impair or
10 impede their ability to protect their interests;
11 3) In the context of wage litigation because as a practical matter a
12 substantial number of individual class members will avoid
13 asserting their legal rights out of fear of retaliation by
14 DEFENDANT, which may adversely affect an individual’s job
15 with DEFENDANT or with a subsequent employer, the Class
16 Action is the only means to assert their claims through a
17 representative; and,
18 4) A Class Action is superior to other available methods for the fair
19 and efficient adjudication of this litigation because class
20 treatment will obviate the need for unduly and unnecessary
21 duplicative litigation that is likely to result in the absence of
22 certification of this Action pursuant to Fed. R. Civ. Proc.
23 23(b)(2) and/or (3).
24 34. This Court should permit this Action to be maintained as a Class Action
25 pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3), because:
26 (a) The questions of law and fact common to the CALIFORNIA CLASS
27 predominate over any question affecting only individual members
28 because DEFENDANT’s employment practices were uniform and
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1 systematically applied with respect to the CALIFORNIA CLASS;

2 (b) A Class Action is superior to any other available method for the fair
3 and efficient adjudication of the claims of the members of the
4 CALIFORNIA CLASS because in the context of employment litigation
5 a substantial number of individual Class members will avoid asserting
6 their rights individually out of fear of retaliation or adverse impact on
7 their employment;
8 (c) The members of the CALIFORNIA CLASS exceed 100 persons and
9 are therefore so numerous that it is impractical to bring all members of
10 the CALIFORNIA CLASS before the Court;
11 (d) PLAINTIFFS, and the other CALIFORNIA CLASS members, will not
12 be able to obtain effective and economic legal redress unless the action
13 is maintained as a Class Action;
14 (e) There is a community of interest in obtaining appropriate legal and
15 equitable relief for the acts of unfair competition, statutory violations
16 and other improprieties, and in obtaining adequate compensation for the
17 injuries which DEFENDANT’s actions have inflicted upon the
18 CALIFORNIA CLASS;
19 (f) There is a community of interest in ensuring that the combined assets of
20 DEFENDANT are sufficient to adequately compensate the members of
21 the CALIFORNIA CLASS for the injuries sustained;
22 (g) DEFENDANT had acted or refused to act on grounds generally
23 applicable to the CALIFORNIA CLASS, thereby making final class-
24 wide relief appropriate with respect to the CALIFORNIA CLASS as a
25 whole;
26 (h) The members of the CALIFORNIA CLASS are readily ascertainable
27 from the business records of DEFENDANT. The CALIFORNIA
28 CLASS consists of all DEFENDANT’s Service Employees employed
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1 in California during the CALIFORNIA CLASS PERIOD; and,

2 (i) Class treatment provides manageable judicial treatment calculated to
3 bring an efficient and rapid conclusion to all litigation of all wage and
4 hour related claims arising out of the conduct of DEFENDANT as to
5 the members of the CALIFORNIA CLASS.
6 35. DEFENDANT maintains records from which the Court can ascertain and
7 identify by name and job title, each of DEFENDANT’s employees who have been
8 systematically, intentionally and uniformly subjected to DEFENDANT’s corporate policy,
9 practices and procedures as herein alleged. PLAINTIFFS will seek leave to amend the
10 complaint to include any additional job titles of similarly situated employees when they have
11 been identified.
12
13
THE CALIFORNIA LABOR SUB-CLASS
14
36. PLAINTIFFS further bring the Second and Third Causes of Action on behalf
15
of a sub-class which consists of all members of the CALIFORNIA CLASS who were
16
employed by DEFENDANT during the period beginning on the date three (3) years prior to
17
the filing of the Action and ending on the date as determined by the Court (the
18
"CALIFORNIA LABOR SUB-CLASS PERIOD"), who performed work in excess of eight
19
(8) hours in one day and/or forty (40) hours in one week and/or hours on the seventh (7th)
20
consecutive day of a workweek and did not receive overtime compensation (the
21
"CALIFORNIA LABOR SUB-CLASS") pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3).
22
37. DEFENDANT, as a matter of corporate policy, practice and procedure,
23
and in violation of the applicable California Labor Code ("Labor Code"), and Industrial
24
Welfare Commission ("IWC") Wage Order Requirements intentionally, knowingly, wilfully,
25
and systematically misclassified the PLAINTIFFS and the other members of the
26
CALIFORNIA CLASS and the CALIFORNIA LABOR SUB-CLASS as exempt from
27
overtime wages and other labor laws based on DEFENDANT’s comprehensive policies and
28
-16- 10cv2255-JAH-NLS
1 procedures in order to avoid the payment of overtime wages by misclassifying their

2 positions as exempt from overtime wages and other labor laws. To the extent equitable
3 tolling operates to toll claims by the CALIFORNIA LABOR SUB-CLASS against
4 DEFENDANT, the CLASS PERIOD should be adjusted accordingly.
5 38. DEFENDANTS have intentionally and deliberately created a number of job
6 job titles such as "Route Sales Manager," "Service Sales Route Specialist" or "Service
7 Installer and Technician." These titles were distributed in order to create the superficial
8 appearance of a number of unique jobs, when in fact, these jobs are substantially similar and
9 can be easily grouped together for the purpose of determining whether they were all
10 misclassified. One of DEFENDANT’s purposes in creating and maintaining this multi-title
11 job classification scheme is to create an artificial barrier to discovery and class certification
12 for all employees similarly misclassified as exempt. DEFENDANT has uniformly
13 misclassified these CALIFORNIA LABOR SUB-CLASS members as exempt and denied
14 them overtime wages and other benefits to which non-exempt employees are entitled in
15 order to unfairly cheat the competition and unlawfully profit.
16 39. DEFENDANT maintains records from which the Court can ascertain and
17 identify by job title each of DEFENDANT’s employees who as CALIFORNIA LABOR
18 SUB-CLASS members have been systematically, intentionally and uniformly misclassified
19 as exempt as a matter of DEFENDANT’s corporate policy, practices and procedures.
20 PLAINTIFFS will seek leave to amend the complaint to include these additional job titles
21 when they have been identified.
22 40. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all
23 members, which number over 100 Service Employees, is impracticable.
24 41. Common questions of law and fact exist as to members of the CALIFORNIA
25 LABOR SUB-CLASS, including, but not limited, to the following:
26 (a) Whether DEFENDANT unlawfully failed to pay overtime
27 compensation to members of the CALIFORNIA LABOR SUB-CLASS
28 in violation of the California Labor Code and California regulations and
-17- 10cv2255-JAH-NLS
1 the applicable California Wage Order;

2 (b) Whether the members of the CALIFORNIA LABOR SUB-CLASS are
3 non-exempt employees entitled to overtime compensation for overtime
4 hours worked under the overtime pay requirements of California law;
5 (c) Whether DEFENDANT’s policy and practice of classifying the
6 CALIFORNIA LABOR SUB-CLASS members as exempt from
7 overtime compensation and failing to pay the CALIFORNIA LABOR
8 SUB-CLASS members overtime violate applicable provisions of
9 California law;
10 (d) Whether DEFENDANT unlawfully failed to keep and furnish
11 CALIFORNIA LABOR SUB-CLASS members with accurate records
12 of overtime hours worked;
13 (e) Whether DEFENDANT’s policy and practice of failing to pay members
14 of the CALIFORNIA LABOR SUB-CLASS all wages when due within
15 the time required by law after their employment ended violates
16 California law; and,
17 (f) The proper measure of damages and penalties owed to the members of
18 the CALIFORNIA LABOR SUB-CLASS.
19 42. DEFENDANT, as a matter of corporate policy, practice and procedure,
20 erroneously classified all Service Employees as exempt from overtime wages and other
21 labor laws. All Service Employees, including the PLAINTIFFS, performed the same
22 primary functions and were paid by DEFENDANT according to uniform and systematic
23 company procedures, which, as alleged herein above, failed to correctly pay overtime
24 compensation. This business practice was uniformly applied to each and every member of
25 the CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety of this conduct can
26 be adjudicated on a class-wide basis.
27 43. DEFENDANT violated the rights of the CALIFORNIA LABOR SUB-CLASS
28 under California law by:
-18- 10cv2255-JAH-NLS
1 (a) Violating Cal. Lab. Code §§ 510, et seq., by misclassifying and thereby
2 failing to pay the PLAINTIFFS and the members of the CALIFORNIA
3 LABOR SUB-CLASS the correct overtime pay for a workday longer
4 than eight (8) hours, a workweek longer than forty (40) hours, and/or all
5 hours worked on the seventh (7th) consecutive day of a workweek for
6 which DEFENDANT is liable pursuant to Cal. Lab. Code § 1194;
7 (b) Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that
8 when an employee is discharged or quits from employment, the
9 employer must pay the employee all wages due without abatement, by
10 failing to tender full payment and/or restitution of wages owed or in the
11 manner required by California law to the members of the
12 CALIFORNIA LABOR SUB-CLASS who have terminated their
13 employment;
14 (c) Violating Cal. Lab. Code § 226, by failing to provide the PLAINTIFFS
15 and the members of the CALIFORNIA LABOR SUB-CLASS who
16 were improperly classified as exempt with an accurate itemized
17 statement in writing showing the gross wages earned, the net wages
18 earned, all applicable hourly rates in effect during the pay period and
19 the corresponding number of hours worked at each hourly rate by the
20 employee.
21 44. This Class Action meets the statutory prerequisites for the maintenance of a
22 Class Action as set forth in Fed. R. Civ. Proc. 23(b)(2) and/or (3), in that:
23 (a) The persons who comprise the CALIFORNIA LABOR SUB-CLASS
24 exceed 100 persons and are therefore so numerous that the joinder of all
25 such persons is impracticable and the disposition of their claims as a
26 class will benefit the parties and the Court;
27 (b) Nearly all factual, legal, statutory, and declaratory relief issues that are
28 raised in this Complaint are common to the CALIFORNIA LABOR
-19- 10cv2255-JAH-NLS
1 SUB-CLASS and will apply uniformly to every member of the

2 CALIFORNIA LABOR SUB-CLASS;
3 (c) The claims of the representative PLAINTIFFS are typical of the claims
4 of each member of the CALIFORNIA LABOR SUB-CLASS.
5 PLAINTIFFS, like all other members of the CALIFORNIA LABOR
6 SUB-CLASS, were improperly classified as exempt and denied
7 overtime pay as a result of DEFENDANT’s systematic classification
8 practices. PLAINTIFFS and all other members of the CALIFORNIA
9 LABOR SUB-CLASS sustained economic injuries arising from
10 DEFENDANT’s violations of the laws of California; and,
11 (d) The representative PLAINTIFFS will fairly and adequately represent
12 and protect the interest of the CALIFORNIA LABOR SUB-CLASS,
13 and has retained counsel who are competent and experienced in Class
14 Action litigation. There are no material conflicts between the claims of
15 the representative PLAINTIFFS and the members of the CALIFORNIA
16 LABOR SUB-CLASS that would make class certification
17 inappropriate. Counsel for the CALIFORNIA LABOR SUB-CLASS
18 will vigorously assert the claims of all Class Members.
19 45. In addition to meeting the statutory prerequisites to a Class Action, this Action
20 is properly maintained as a Class Action pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3),
21 in that:
22 (a) Without class certification and determination of declaratory, statutory
23 and other legal questions within the class format, prosecution of
24 separate actions by individual members of the CALIFORNIA LABOR
25 SUB-CLASS will create the risk of:
26 1) Inconsistent or varying adjudications with respect to individual
27 members of the CALIFORNIA LABOR SUB-CLASS which
28 would establish incompatible standards of conduct for the parties
-20- 10cv2255-JAH-NLS
1 opposing the CALIFORNIA LABOR SUB-CLASS; or,

2 2) Adjudication with respect to individual members of the
3 CALIFORNIA LABOR SUB-CLASS which would as a
4 practical matter be dispositive of interests of the other members
5 not party to the adjudication or substantially impair or impede
6 their ability to protect their interests.
7 (b) The parties opposing the CALIFORNIA LABOR SUB-CLASS have
8 acted or refused to act on grounds generally applicable to the
9 CALIFORNIA LABOR SUB-CLASS, making appropriate class-wide
10 relief with respect to the CALIFORNIA LABOR SUB-CLASS as a
11 whole in that DEFENDANT uniformly classified and treated the
12 Service Employees as exempt and, thereafter, uniformly failed to take
13 proper steps to determine whether the Service Employees were properly
14 classified as exempt, and thereby denied these employees overtime
15 wages as required by law;
16 (c) Common questions of law and fact predominate as to the members of
17 the CALIFORNIA LABOR SUB-CLASS, with respect to the practices
18 and violations of California law as listed above, and predominate over
19 any question affecting only individual members, and a Class Action is
20 superior to other available methods for the fair and efficient
21 adjudication of the controversy, including consideration of:
22 1) The interests of the members of the CALIFORNIA LABOR
23 SUB-CLASS in individually controlling the prosecution or
24 defense of separate actions in that the substantial expense of
25 individual actions will be avoided to recover the relatively small
26 amount of economic losses sustained by the individual
27 CALIFORNIA LABOR SUB-CLASS members when compared
28 to the substantial expense and burden of individual prosecution
-21- 10cv2255-JAH-NLS
1 of this litigation;
2 2) Class certification will obviate the need for unduly duplicative
3 litigation that would create the risk of:
4 A. Inconsistent or varying adjudications with respect to
5 individual members of the CALIFORNIA LABOR SUB-
6 CLASS, which would establish incompatible standards of
7 conduct for DEFENDANT; and/or,
8 B. Adjudications with respect to individual members of the
9 CALIFORNIA LABOR SUB-CLASS would as a
10 practical matter be dispositive of the interests of the other
11 members not parties to the adjudication or substantially
12 impair or impede their ability to protect their interests;
13 3) In the context of wage litigation because a substantial number of
14 individual class members will avoid asserting their legal rights
15 out of fear of retaliation by DEFENDANT, which may adversely
16 affect an individual’s job with DEFENDANT or with a
17 subsequent employer, the Class Action is the only means to
18 assert their claims through a representative; and,
19 4) A Class Action is superior to other available methods for the fair
20 and efficient adjudication of this litigation because class
21 treatment will obviate the need for unduly and unnecessary
22 duplicative litigation that is likely to result in the absence of
23 certification of this Action pursuant to Fed. R. Civ. Proc.
24 23(b)(2) and/or (3).
25 46. This Court should permit this Action to be maintained as a Class Action
26 pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3), because:
27 (a) The questions of law and fact common to the CALIFORNIA LABOR
28 SUB-CLASS predominate over any question affecting only individual

-22- 10cv2255-JAH-NLS
1 members;
2 (b) A Class Action is superior to any other available method for the fair
3 and efficient adjudication of the claims of the members of the
4 CALIFORNIA LABOR SUB-CLASS because in the context of
5 employment litigation a substantial number of individual Class
6 members will avoid asserting their rights individually out of fear of
7 retaliation or adverse impact on their employment;
8 (c) The members of the CALIFORNIA LABOR SUB-CLASS exceed 100
9 persons and are therefore so numerous that it is impractical to bring all
10 members of the CALIFORNIA LABOR SUB-CLASS before the Court;
11 (d) PLAINTIFFS, and the other CALIFORNIA LABOR SUB-CLASS
12 members, will not be able to obtain effective and economic legal
13 redress unless the action is maintained as a Class Action;
14 (e) There is a community of interest in obtaining appropriate legal and
15 equitable relief for the acts of unfair competition, statutory violations
16 and other improprieties, and in obtaining adequate compensation for the
17 damages and injuries which DEFENDANT’s actions have inflicted
18 upon the CALIFORNIA LABOR SUB-CLASS;
19 (f) There is a community of interest in ensuring that the combined assets of
20 DEFENDANT are sufficient to adequately compensate the members of
21 the CALIFORNIA LABOR SUB-CLASS for the injuries sustained;
22 (g) DEFENDANT has acted or refused to act on grounds generally
23 applicable to the CALIFORNIA LABOR SUB-CLASS, thereby
24 making final class-wide relief appropriate with respect to the
25 CALIFORNIA LABOR SUB-CLASS as a whole;
26 (h) The members of the CALIFORNIA LABOR SUB-CLASS are readily
27 ascertainable from the business records of DEFENDANT. The
28 CALIFORNIA LABOR SUB-CLASS consists of those Service

-23- 10cv2255-JAH-NLS
1 Employees who worked overtime hours and who were not paid
2 overtime; and,
3 (i) Class treatment provides manageable judicial treatment calculated to
4 bring a efficient and rapid conclusion to all litigation of all wage and
5 hour related claims arising out of the conduct of DEFENDANT.
6
7
JURISDICTION AND VENUE
8
47. This Court has jurisdiction over the PLAINTIFFS’ federal claim pursuant to 28
9
U.S.C.§1331 and supplemental jurisdiction of the PLAINTIFFS’ state law claims pursuant to
10
28 U.S.C. § 1367.
11
48. Further, with respect to the state law class claims, these state law class claims
12
are brought as a Class Action pursuant to Fed. R. Civ. Proc, Rule 23 on behalf of a class that
13
exceeds 100 persons, that involves more than $5,000,000 in controversy, and where the
14
citizenship of at least one member of the class is diverse from that of DEFENDANT. As a
15
result, this Court also has original jurisdiction over the state law class claims under 28
16
U.S.C. § 1332 (CAFA Jurisdiction).
17
49. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because: (i)
18
DEFENDANT is subject to personal jurisdiction in this District and therefore resides in this
19
District; (ii) DEFENDANT maintains offices or facilities in this District; and, (iii)
20
DEFENDANT committed the wrongful conduct against members of the CALIFORNIA
21
CLASS in this District.
22
23
FIRST CAUSE OF ACTION
24
For Unlawful Business Practices
25
[Cal. Bus. And Prof. Code § 17200 et seq.]
26
(By PLAINTIFFS and the CALIFORNIA CLASS and against All Defendants)
27
50. PLAINTIFFS, and the other members of the CALIFORNIA CLASS, reallege
28
and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 49
-24- 10cv2255-JAH-NLS
1 of this Complaint.
2 51. DEFENDANT is a "persons" as that term is defined under Cal. Bus. and Prof.
3 Code § 17021.
4 52. California Business & Professions Code § 17200 et seq. (the "UCL") defines
5 unfair competition as any unlawful, unfair, or fraudulent business act or practice. Section
6 17203 authorizes injunctive, declaratory, and/or other equitable relief with respect to unfair
7 competition as follows:
8 Any person who engages, has engaged, or proposes to engage in unfair
competition may be enjoined in any court of competent jurisdiction. The court
9 may make such orders or judgments, including the appointment of a receiver,
as may be necessary to prevent the use or employment by any person of any
10 practice which constitutes unfair competition, as defined in this chapter, or as
may be necessary to restore to any person in interest any money or property,
11 real or personal, which may have been acquired by means of such unfair
competition.
12
California Business & Professions Code § 17203.
13
53. By the conduct alleged herein, DEFENDANT has engaged and continues to
14
engage in a business practice which violates California law, including but not limited to
15
provisions of the Wage Orders, the California Labor Code, the regulations of the
16
Department of Labor, and the opinions of the Department of Labor Standards Enforcement,
17
for which this Court should issue declaratory, and other equitable relief, pursuant to Cal.
18
Bus. & Prof. Code § 17203, as may be necessary to prevent and remedy the conduct held to
19
constitute unfair competition.
20
54. Throughout the CLASS PERIOD, it was also DEFENDANT’s uniform policy
21
and practice to not pay the Service Employees additional wages for processing consumer
22
sales orders for machine parts and chemicals. In addition, DEFENDANT also had in place a
23
uniform policy and practice to make unavailable mandatory meal and rest breaks to the
24
PLAINTIFFS and the Class Members. DEFENDANT’s uniform practice requires the
25
PLAINTIFFS and the Class Members to work continuously throughout the workday without
26
being supplied meal and/or rest breaks in accordance with the number of hours they worked.
27
At all relevant times during the CLASS PERIOD, DEFENDANT failed to provide any
28
compensated work time for interrupting and/or failing to provide such breaks to the
-25- 10cv2255-JAH-NLS
1 PLAINTIFFS and the Class Members. DEFENDANT’s conduct therefore violates Labor
2 Code §§ 226.7 and 512.
3 55. Therefore, the PLAINTIFFS demand on behalf of themselves and on behalf of
4 each member of the CLASS, one (1) hour of pay for each workday in which an off-duty
5 meal period was not timely provided for each five (5) hours of work, and/or one (1) hour of
6 pay for each workday in which a second off-duty meal period was not timely provided for
7 each ten (10) hours of work.
8 56. PLAINTIFFS further demand on behalf of themselves and on behalf of each
9 member of the CLASS, one (1) hour of pay for each workday in which a rest period was not
10 timely provided as required by law.
11 57. By and through the unfair and unlawful business practices described herein
12 above, DEFENDANT has obtained valuable property, money, and services from the
13 PLAINTIFFS, and the other members of the CALIFORNIA CLASS, and has deprived them
14 of valuable rights and benefits guaranteed by law, all to their detriment and to the benefit of
15 DEFENDANT so as to allow DEFENDANT to unfairly compete. Declaratory and equitable
16 relief is necessary to prevent and remedy this unfair competition.
17 58. All the acts described herein as violations of, among other things, the
18 California Labor Code, California Code of Regulations, and the Industrial Welfare
19 Commission Wage Orders, are unlawful, are in violation of public policy, are immoral,
20 unethical, oppressive, and unscrupulous, and are likely to deceive employees, as herein
21 alleged, and thereby constitute deceptive, unfair and unlawful business practices in violation
22 of Cal. Bus. and Prof. Code § 17200 et seq.
23 59. PLAINTIFFS, and the other members of the CALIFORNIA CLASS, are
24 further entitled to, and do, seek a declaration that the above described business practices are
25 deceptive, unfair and/or unlawful.
26 60. The practices herein alleged presently continue to occur unabated. As a result
27 of the unfair and unlawful business practices described above, the PLAINTIFFS, and the
28 other members of the CALIFORNIA CLASS, have suffered legal and economic harm.

-26- 10cv2255-JAH-NLS
1 SECOND CAUSE OF ACTION

2 For Failure To Pay Overtime Compensation
3 [Cal. Lab. Code §§ 510, 515.5, 551, 552, 1194 and 1198]
4 (By PLAINTIFFS and the CALIFORNIA LABOR SUB-CLASS)
5 61. PLAINTIFFS, and the other members of the CALIFORNIA LABOR
6 SUB-CLASS, reallege and incorporate by this reference, as though fully set forth herein,
7 paragraphs 1 through 60 of this Complaint.
8 62. Cal. Lab. Code § 510 states in relevant part:
9 Eight hours of labor constitutes a day's work. Any work in excess of eight
hours in one workday and any work in excess of 40 hours in any one
10 workweek and the first eight hours worked on the seventh day of work in any
one workweek shall be compensated at the rate of no less than one and one-
11 half times the regular rate of pay for an employee. Any work in excess of 12
hours in one day shall be compensated at the rate of no less than twice the
12 regular rate of pay for an employee. In addition, any work in excess of eight
hours on any seventh day of a workweek shall be compensated at the rate of
13 no less than twice the regular rate of pay of an employee.
14 63. Cal. Lab. Code § 551 states that, "Every person employed in any
15 occupation of labor is entitled to one day’s rest therefrom in seven."
16 64. Cal. Lab. Code § 552 states that, "No employer of labor shall cause his
17 employees to work more than six days in seven."
18 65. Cal. Lab. Code § 515(d) provides: "For the purpose of computing the
19 overtime rate of compensation required to be paid to a nonexempt full-time salaried
20 employee, the employee's regular hourly rate shall be 1/40th of the employee's weekly
21 salary."
22 66. Cal. Lab. Code § 1194 states:
23 Notwithstanding any agreement to work for a lesser wage, any employee
receiving less than the legal minimum wage or the legal overtime
24 compensation applicable to the employee is entitled to recover in a civil action
the unpaid balance of the full amount of this minimum wage or overtime
25 compensation, including interest thereon, reasonable attorney's fees, and costs
of suit.
26
67. Cal. Lab. Code § 1198 provides: "The maximum hours of work and the
27
standard conditions of labor fixed by the commission shall be the maximum hours of work
28
and the standard conditions of labor for employees. The employment of any employee for
-27- 10cv2255-JAH-NLS
1 longer hours than those fixed by the order or under conditions of labor prohibited by the
2 order is unlawful."
3 68. In addition, Labor Code Section 558 provides:
4 (a) Any employer or other person acting on behalf of an employer
who violates, or causes to be violated, a section of this chapter or any
5 provision regulating hours and days of work in any order of the Industrial
Welfare Commission shall be subject to a civil penalty as follows:
6 (1) For any initial violation, fifty dollars ($50) for each underpaid
employee for each pay period for which the employee was underpaid in
7 addition to an amount sufficient to recover underpaid wages.
(2) For each subsequent violation, one hundred dollars ($100) for each
8 underpaid employee for each pay period for which the employee was
underpaid in addition to an amount sufficient to recover underpaid wages.
9 (3) Wages recovered pursuant to this section shall be paid to the
affected employee.
10 (b) If upon inspection or investigation the Labor Commissioner determines
that a person had paid or caused to be paid a wage for overtime work in
11 violation of any provision of this chapter, or any provision regulating hours
and days of work in any order of the Industrial Welfare Commission, the
12 Labor Commissioner may issue a citation. The procedures for issuing,
contesting, and enforcing judgments for citations or civil penalties issued by
13 the Labor Commissioner for a violation of this chapter shall be the same as
those set out in Section 1197.1.
14 (c) The civil penalties provided for in this section are in addition to any other
civil or criminal penalty provided by law.
15
69. DEFENDANT has intentionally and uniformly designated certain employees
16
as "exempt" employees, by their job title and without regard to DEFENDANT’s realistic
17
expectations and actual overall requirements of the job, including the PLAINTIFFS and the
18
other members of the CALIFORNIA LABOR SUB-CLASS who worked on the production
19
side of DEFENDANT’s business. This was done in an illegal attempt to avoid payment of
20
overtime wages and other benefits in violation of the Cal. Lab. Code and Industrial Welfare
21
Commission requirements.
22
70. For an employee to be exempt as an "outside salesperson," all the following
23
criteria must be met and DEFENDANT has the burden of proving that:
24
(a) The employee’s primary duty must be making sales as defined to include any
25
sale, exchange, contract to sell, consignment sale, shipment for sale, or other
26
disposition; or
27
(b) The employee must obtain orders or contracts for services or for the use of
28
facilities for which a consideration will be paid by the client or customer; and,
-28- 10cv2255-JAH-NLS
1 (c) The employee must customarily and regularly spend more than half the work
2 time away from the employer’s place of business engaged in sales-related
3 activity; and,
4 (d) The employee must be primarily engaged in duties which meet the test of
5 exemption.
6 No member of the CALIFORNIA LABOR SUB-CLASS was or is an outside salesperson
7 because they all fail to meet the requirements of being an "outside salesperson" within the
8 meaning of the applicable Wage Order.
9 71. For an employee to be exempt as a bona fide "executive," all the following
10 criteria must be met and DEFENDANT has the burden of proving that:
11 (a) The employee’s primary duty must be management of the enterprise, or of a
12 customarily recognized department or subdivision; and,
13 (b) The employee must customarily and regularly direct the work of at least two
14 (2) or more other employees; and,
15 (c) The employee must have the authority to hire and fire, or to command
16 particularly serious attention to his or his recommendations on such actions
17 affecting other employees; and,
18 (d) The employee must customarily and regularly exercise discretion and
19 independent judgment; and,
20 (e) The employee must be primarily engaged in duties which meet the test of
21 exemption.
22 No member of the CALIFORNIA LABOR SUB-CLASS was or is an executive because
23 they all fail to meet the requirements of being an "executive" within the meaning of the
24 applicable Wage Order.
25 72. For an employee to be exempt as a bona fide "administrator," all of the
26 following criteria must be met and DEFENDANT has the burden of proving that:
27 (a) The employee must perform office or non-manual work directly related to
28 management policies or general business operation of the employer; and,

-29- 10cv2255-JAH-NLS
1 (b) The employee must customarily and regularly exercise discretion and
2 independent judgment; and,
3 (c) The employee must regularly and directly assist a proprietor or an exempt
4 administrator; or,
5 (d) The employee must perform, under only general supervision, work requiring
6 special training, experience, or knowledge, or,
7 (e) The employee must execute special assignments and tasks under only general
8 supervision; and,
9 (f) The employee must be primarily engaged in duties which meet the test of
10 exemption.
11 No member of the CALIFORNIA LABOR SUB-CLASS was or is an administrator because
12 they all fail to meet the requirements for being an "administrator" under the applicable Wage
13 Order.
14 73. The Industrial Welfare Commission, in Wage Order 1-2001 and 4-2001, at
15 section (1)(A)(3)(h), and Labor Code § 515 also set forth the requirements which must be
16 complied with to place an employee in the "professional" exempt category. For an
17 employee to be "exempt" as a bona fide "professional," all the following criteria must be met
18 and DEFENDANT has the burden of proving that:
19 (a) The employee is primarily engaged in an occupation commonly recognized as
20 a learned or artistic profession. For the purposes of this subsection, “learned
21 or artistic profession” means an employee who is primarily engaged in the
22 performance of:
23 1) Work requiring knowledge of an advanced type in a field or science or
24 learning customarily acquired by a prolonged course of specialized
25 intellectual instruction and study, as distinguished from a general
26 academic education and from an apprenticeship, and from training in
27 the performance of routine mental, manual, or physical processes, or
28 work that is an essential part or necessarily incident to any of the above

-30- 10cv2255-JAH-NLS
1 work; or,
2 2) Work that is original and creative in character in a recognized field of
3 artistic endeavor, and the result of which depends primarily on the
4 invention, imagination or talent of the employee or work that is an
5 essential part of or incident to any of the above work; and,
6 3) Whose work is predominately intellectual and varied in character (as
7 opposed to routine mental, manual, mechanical, or physical work) and
8 is of such character cannot be standardized in relation to a given period
9 of time.
11 independent judgment; and.
12 (c) The employee earns a monthly salary equivalent to no less than two (2) times
13 the state minimum wage for full-time employment.
14 No member of the CALIFORNIA LABOR SUB-CLASS was or is a professional because
15 they all fail to meet the requirements of being a "professional" within the meaning of the
16 applicable Wage Order.
17 74. PLAINTIFFS, and other members of the CALIFORNIA LABOR SUB-
18 CLASS, do not fit the definition of an exempt outside salesperson, executive, administrative,
19 or professional employee because:
20 (a) They did not work as outside salespeople, executives or administrators; and,
21 (b) The professional exemption does not apply to the PLAINTIFFS, nor to the
22 other members of the CALIFORNIA LABOR SUB-CLASS because they did
23 not meet all the applicable requirements to work under the professional
24 exemption for the reasons set forth above in this Complaint.
25 75. During the class period, the PLAINTIFFS, and other members of the
26 CALIFORNIA LABOR SUB-CLASS, worked more than eight (8) hours in a workday, forty
27 (40) hours in a work week, and/or worked on the seventh (7th) consecutive day of a
28 workweek.

-31- 10cv2255-JAH-NLS
1 76. At all relevant times, DEFENDANT failed to pay the PLAINTIFFS, and other
2 members of the CALIFORNIA LABOR SUB-CLASS, overtime compensation for the hours
3 they have worked in excess of the maximum hours permissible by law as required by Cal.
4 Lab. Code §§ 510 and 1198, even though the PLAINTIFFS, and the other members of the
5 CALIFORNIA LABOR SUB-CLASS, were regularly required to work, and did in fact
6 work, overtime hours.
7 77. By virtue of DEFENDANT’s unlawful failure to pay additional compensation
8 to the PLAINTIFFS, and the other members of the CALIFORNIA LABOR SUB-CLASS,
9 for their overtime hours, the PLAINTIFFS, and the other members of the CALIFORNIA
10 LABOR SUB-CLASS, have suffered, and will continue to suffer, an economic injury in
11 amounts which are presently unknown to them and which will be ascertained according to
12 proof at trial.
13 78. DEFENDANT knew or should have known that the PLAINTIFFS, and the
14 other members of the CALIFORNIA LABOR SUB-CLASS, were misclassified as exempt
15 and DEFENDANT systematically elected, either through intentional malfeasance or gross
16 nonfeasance, not to pay them for their overtime labor as a matter of uniform corporate
17 policy, practice and procedure.
18 79. Therefore, the PLAINTIFFS, and the other members of the CALIFORNIA
19 LABOR SUB-CLASS, request recovery of overtime compensation according to proof,
20 interest, costs, as well as the assessment of any statutory penalties against DEFENDANT, in
21 a sum as provided by the Cal. Lab. Code and/or other statutes. To the extent overtime
22 compensation is determined to be owed to members of the CALIFORNIA LABOR SUB-
23 CLASS who have terminated their employment, these employees would also be entitled to
24 waiting time penalties under Labor Code § 203, which penalties are sought herein, because
25 DEFENDANT’s failure to pay such overtime wages was willful. Further, the PLAINTIFFS,
26 and the other members of the CALIFORNIA LABOR SUB-CLASS, are entitled to seek and
27 recover statutory costs, and therefore request statutory costs as well.
28 80. In performing the acts and practices herein alleged in violation of labor laws

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1 and refusing to provide the requisite overtime compensation, DEFENDANT acted and
2 continues to act intentionally, oppressively, and maliciously toward the PLAINTIFFS, and
3 toward the other members of the CALIFORNIA LABOR SUB-CLASS, with a conscious
4 and utter disregard of their legal rights, or the consequences to them, and with the despicable
5 intent of depriving them of their property and legal rights and otherwise causing them injury
6 in order to increase corporate profits at the expense of the PLAINTIFFS and the members of
7 the CALIFORNIA CLASS.
8
9 THIRD CAUSE OF ACTION
10 For Failure to Provide Accurate Itemized Statements
11 [Cal. Lab. Code § 226]
12 (By PLAINTIFFS and the CALIFORNIA LABOR SUB-CLASS)
13 81. PLAINTIFFS, and the other members of the CALIFORNIA LABOR
14 SUB-CLASS, reallege and incorporate by this reference, as though fully set forth herein,
15 paragraphs 1 through 80 of this Complaint.
16 82. Cal. Labor Code § 226 provides that an employer must furnish employees
17 with an "accurate itemized statement in writing" showing:
18 (1) gross wages earned,
(2) total hours worked by the employee, except for any employee whose
19 compensation is solely based on a salary and who is exempt from payment of
overtime under subdivision (a) of Section 515 or any applicable order of the
20 Industrial Welfare Commission,
(3) the number of piecerate units earned and any applicable piece rate if the employee
21 is paid on a piece-rate basis,
(4) all deductions, provided that all deductions made on written orders of the
22 employee may be aggregated and shown as one item,
(5) net wages earned,
23 (6) the inclusive dates of the period for which the employee is paid,
(7) the name of the employee and his or her social security number, except that by
24 January 1, 2008, only the last four digits of his or her social security number or an
employee identification number other than a social security number may be shown on
25 the itemized statement,
(8) the name and address of the legal entity that is the employer, and
26 (9) all applicable hourly rates in effect during the pay period and the corresponding
number of hours worked at each hourly rate by the employee.
27
83. At all times relevant herein, DEFENDANT violated Labor Code § 226,
28
in that DEFENDANT failed to provide an accurate wage statement in writing that properly
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1 and accurately itemized the number of hours worked by the PLAINTIFFS, and the other
2 members of the CALIFORNIA LABOR SUB-CLASS at the effective regular rates of pay
3 and the effective overtime rates of pay.
4 84. DEFENDANT knowingly and intentionally failed to comply with Labor Code
5 § 226, causing damages to the PLAINTIFFS, and the other members of the CALIFORNIA
6 LABOR SUB-CLASS. These damages include, but are not limited to, costs expended
7 calculating the true hours worked and the amount of employment taxes which were not
8 properly paid to state and federal tax authorities. These damages are difficult to estimate.
9 Therefore, the PLAINTIFFS, and the other members of the CALIFORNIA LABOR SUB-
10 CLASS may elect to recover liquidated damages of $50.00 for the initial pay period in
11 which the violation occurred, and $100.00 for each violation in subsequent pay period
12 pursuant to Labor Code § 226, in an amount according to proof at the time of trial (but in no
13 event more than $4,000.00 for the PLAINTIFFS and each respective member of the
14 CALIFORNIA LABOR SUB-CLASS herein).
15
16 FOURTH CAUSE OF ACTION
17 Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA")
18 (By PLAINTIFFS and the COLLECTIVE CLASS and against All Defendants)
19 85. PLAINTIFFS, and the other members of the COLLECTIVE CLASS, reallege and
20 incorporate by this reference, as though fully set forth herein, paragraphs 1 through 84 of this
21 Complaint.
22 86. DEFENDANT is engaged in communication, business, and transmission between
23 the states, and is, therefore, engaged in commerce within the meaning of 29 U.S.C. § 203(b).
24 87. PLAINTIFFS further bring the Fourth Cause of Action on behalf of a
25 Collective Class in accordance with 29 U.S.C. § 216 which consists of all Service Employees
26 employed in California by DEFENDANT during the period three (3) years prior to the filing
27 of the complaint and ending on the date as determined by the Court, and who performed work
28 in excess of forty (40) hours in one week (the "COLLECTIVE CLASS").

-34- 10cv2255-JAH-NLS
1 88. 29 U.S.C. § 255 provides that a three-year statute of limitations applies to willful
2 violations of the FLSA.
3 89. 29 U.S.C. § 207(a)(1) provides in pertinent part:
4 Except as otherwise provided in this section, no employer shall employ any of his
employees who in any workweek is engaged in commerce or in the production
5 of goods for commerce, or is employed in an enterprise engaged in commerce or
in the production of goods for commerce, for a workweek longer than forty hours
6 unless such employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half times the regular
7 rate at which he is employed.
8 90. Section 213(a)(1) of the FLSA provides that the overtime pay requirement does
9 not apply to:
10 any employee employed in a bona fide executive, administrative, or professional
capacity (including any employee employed in the capacity of academic
11 administrative personnel or teacher in elementary or secondary schools), or in the
capacity of outside salesman (as such terms are defined and delimited from time
12 to time by regulations of the Secretary, subject to the provisions of the
Administrative Procedure Act [5 USCS §§ 551 et seq.] except [that] an employee
13 of a retail or service establishment shall not be excluded from the definition of
employee employed in a bona fide executive or administrative capacity because
14 of the number of hours in his workweek which he devotes to activities not
directly or closely related to the performance of executive or administrative
15 activities, if less than 40 per centum of his hours worked in the workweek are
devoted to such activities).
16
91. DEFENDANT has willfully engaged in a widespread pattern and practice of
17
violating the provisions of the FLSA, as detailed above, by uniformly designating certain
18
employees as "exempt" employees, by their job title and without regard to DEFENDANT’s
19
realistic expectations and actual overall requirements of the job, including the PLAINTIFFS and
20
the other members of the COLLECTIVE CLASS who worked on the production side of
21
DEFENDANT’s business enterprise. This was done in an illegal attempt to avoid payment of
22
overtime wages and other benefits in violation of the FLSA and Code of Federal Regulations
23
requirements.
24
92. Pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., the
25
PLAINTIFFS and the other members of the COLLECTIVE CLASS are entitled to overtime
26
compensation for all overtime hours actually worked, at a rate not less than one and one-half
27
times their regular rate of pay for all hours worked in excess of forty (40) hours in any
28
workweek. DEFENDANT’s failure to pay overtime wages as required by federal law was
-35- 10cv2255-JAH-NLS
1 willful and not in good faith.

2 93. 29 C.F.R. 541.2 establishes that a job title alone is insufficient to establish the
3 exempt status of an employee. The exempt or nonexempt status of any particular employee
4 must be determined on the basis of whether the employee’s salary and duties meet the
5 requirements of the regulations in this part.
6 94. The exemptions of the FLSA as listed in section 13(a), and as explained by 29
7 C.F.R. 541.3, do not apply to the PLAINTIFFS and the other members of the COLLECTIVE
8 CLASS, because their work consists of non-management, production line labor performed with
9 skills and knowledge acquired from on-the-job training, rather than from the prolonged course
10 of specialized intellectual instruction required for exempt learned professional employees such
11 as medical doctors, architects and archeologists. Service Employees either do not hold an
12 advanced degree, have not taken any prolonged course of specialization, and/or have attained
13 the vast majority of the skills they use as employees of DEFENDANT from on the job training.
14 95. For an employee to be exempt as a bona fide "executive," all the following
16 (a) The employee’s primary duty must be management of the enterprise, or of a
17 customarily recognized department or subdivision;
18 (b) The employee must customarily and regularly direct the work of at least two (2)
19 or more other employees;
20 (c) The employee must have the authority to hire and fire, or to command
21 particularly serious attention to his or his recommendations on such actions
22 affecting other employees; and,
23 (d) The employee must be primarily engaged in duties which meet the test of
24 exemption.
25 No member of the COLLECTIVE CLASS was or is an executive because they all fail to meet
26 the requirements of being an "executive" under section 13 of the FLSA and 29 C.F.R. 541.100.
27 Moreover, none of the members of the COLLECTIVE CLASS managed the work of two or
28 more other employees in a customarily recognized department or subdivision of the employer,

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1 and whose recommendations as to the hiring, firing, advancement, promotion or other change
2 of status of the other employees were given particular weight and therefore, they do not qualify
3 for the executive exemption.
4 96. For an employee to be exempt as a bona fide "administrator," all of the following
6 (a) The employee must perform office or non-manual work directly related to
7 management or general business operation of the employer or the employer’s
8 customers;
10 independent
11 judgment with respect to matters of significance; and,
12 (c) The employee must regularly and directly assist a proprietor or an exempt
13 administrator; or,
14 (d) The employee must perform under only general supervision, work requiring
15 special training, experience, or knowledge; and,
16 (e) The employee must be primarily engaged in duties which meet the test of
17 exemption.
18 No member of the COLLECTIVE CLASS was or is an administrator because they all fail to
19 meet the requirements of for being an "administrator" under section 13(a) of the FLSA and 29
20 C.F.R. 541.300. Moreover, their primary duty does not include work such as planning,
21 scheduling, and coordinating activities required to develop systems to solve complex business
22 or scientific problems of the employer or the employer’s customers and therefore, they are not
23 qualified for the administrative exemption.
24 97. For an employee to be "exempt" as a bona fide "professional", DEFENDANT has
25 the burden of proving that the primary duty of the employee is the performance of work that:
26 (a) Requires knowledge of an advanced type in a field of science or learning
27 customarily acquired by a prolonged course of specialized intellectual instruction;
28 or

-37- 10cv2255-JAH-NLS
1 (b) Requires invention, imagination, originality or talent in a recognized field of

2 artistic or creative endeavor.
3 No member of the COLLECTIVE CLASS was or is a professional because they all fail to meet
4 the requirements of being an "professional" within the meaning of 29 CFR 541.300.
5 Further, the PLAINTIFFS and the other Service Employees operated under intense scrutiny
6 from management and are strictly dictated by written guidelines and standardized procedures.
7 98. During the COLLECTIVE CLASS PERIOD, the PLAINTIFFS, and other
8 members of the COLLECTIVE CLASS, worked more than forty (40) hours in a workweek.
9 99. At all relevant times, DEFENDANT failed to pay the PLAINTIFFS, and other
10 members of the COLLECTIVE CLASS, overtime compensation for the hours they have worked
11 in excess of the maximum hours permissible by law as required by section 207 of the FLSA,
12 even though the PLAINTIFFS, and the other members of the COLLECTIVE CLASS, were
13 regularly required to work, and did in fact work, overtime hours.
14 100. For purposes of the Fair Labor Standards Act, the employment practices of
15 DEFENDANT were and are uniform throughout the United States in all respects material to the
16 claims asserted in this Complaint.
17 101. There are no other exemptions applicable to the PLAINTIFFS and/or to members
18 of the COLLECTIVE CLASS.
19 102. As a result of DEFENDANT’s failure to pay overtime compensation for
20 overtime hours worked, as required by the FLSA, the PLAINTIFFS and the members of the
21 COLLECTIVE CLASS were damaged in an amount to be proved at trial.
22 103. Therefore, the PLAINTIFFS demand that the members of the COLLECTIVE
23 CLASS be paid overtime compensation as required by the FLSA for every hour of overtime
24 worked in any workweek for which they were not compensated, plus interest and statutory costs
25 as provided by law.
26 ///
27 ///
28 ///

-38- 10cv2255-JAH-NLS
1 FIFTH CAUSE OF ACTION

2 Labor Code Private Attorneys General Act of 2004, Cal. Lab. Code § 2698 et. seq.
3 (By PLAINTIFFS and the CALIFORNIA CLASS and against All Defendants)
4
5 104. PLAINTIFFS incorporate by reference the allegations set forth in paragraphs
6 1-103, supra, as though fully set forth at this point.
7 105. PLAINTIFFS bring this representative action on behalf of themselves and on
8 behalf of all individuals who are or previously were employed by DEFENDANT as Route
9 Managers, Route Sales Managers, Sales Route Specialists, Service Sales Route Specialists,
10 Service Installers and Service Professionals in California during the applicable statutory
11 period as determined by the Court (the "AGGRIEVED EMPLOYEES").
12 106. On January 4, 2011, PLAINTIFF Robert Schuler Jr. gave written notice by
13 certified mail to the Labor and Workforce Development Agency (the "Agency") and the
14 employer of the specific provisions of this code alleged to have been violated as required by
15 Labor Code § 2699.3. See Exhibit #1, attached hereto and incorporated by this reference
16 herein On February 7, 2011, the Agency notified PLAINTIFFS that the Agency does not
17 intend to investigate the allegations of the Complaint. See Exhibit #2, attached hereto and
18 incorporated by this reference herein. As a result, pursuant to Section 2699.3, PLAINTIFFS
19 may now commence a civil action pursuant to Section 2699.
20 107. The policies, acts and practices heretofore described were and are an unlawful
21 business act or practice because of DEFENDANT’s failure to properly classify
22 PLAINTIFFS and the other AGGRIEVED EMPLOYEES as non-exempt, pay proper wages
23 and overtime wages, and maintain accurate time records for PLAINTIFFS and the
24 AGGRIEVED EMPLOYEES violates the applicable Labor Code sections listed in Labor
25 Code §2699.5 as set forth hereinabove and thereby gives rise to statutory penalties as a result
26 of such conduct. PLAINTIFFS, as AGGRIEVED EMPLOYEES, hereby seek recovery of
27 civil penalties as prescribed by the Labor Code Private Attorney General Act of 2004 on
28 behalf of themselves and other AGGRIEVED EMPLOYEES, against whom one or more of

-39- 10cv2255-JAH-NLS
1 the violations of the Labor Code was committed.

2
3 PRAYER
4 WHEREFOR, the PLAINTIFFS pray for judgment against each Defendant, jointly
5 and severally, as follows:
6 1. On behalf of the CALIFORNIA CLASS:
7 A) That the Court certify the First Cause of Action asserted by the CALIFORNIA
8 CLASS as a Class Action pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3);
9 B) An order requiring DEFENDANT to correctly calculate and pay all wages and
10 all sums unlawfuly withheld from compensation due to the PLAINTIFFS and
11 the other members of the CALIFORNIA CLASS;
12 C) Restitutionary disgorgement of DEFENDANT’s ill-gotten gains into a fluid
13 fund for restitution of the sums incidental to DEFENDANT’s violations due to
14 the PLAINTIFFS and to the other members of the CALIFORNIA CLASS
15 according to proof; and,
16 D) An order temporarily, preliminarily, and permanently enjoining and restraining
17 DEFENDANT from engaging in similar unlawful conduct as set forth herein.
18 2. On behalf of the CALIFORNIA LABOR SUB-CLASS:
19 A) That the Court certify the Second and Third Causes of Action asserted by the
20 CALIFORNIA LABOR SUB-CLASS as a Class Action pursuant to Fed. R.
21 Civ. Proc. 23(b)(2) and/or (3);
22 B) Compensatory damages, according to proof at trial, including compensatory
23 damages for overtime compensation due to the PLAINTIFFS and the other
24 members of the CALIFORNIA LABOR SUB-CLASS, during the applicable
25 CALIFORNIA CLASS PERIODS plus interest thereon at the statutory rate;
26 C) The wages of all terminated employee from the CALIFORNIA LABOR SUB-
27 CLASS as a penalty from the due date thereof at the same rate until paid or
28 until an action therefore is commenced, in accordance with Cal. Lab. Code §

-40- 10cv2255-JAH-NLS
1 203; and,
2 D) The greater of all actual damages or fifty dollars ($50) for the initial pay
3 period in which a violation occurs and one hundred dollars ($100) per each
4 member of the CALIFORNIA LABOR SUB-CLASS for each violation in a
5 subsequent pay period, not exceeding an aggregate penalty of four thousand
6 dollars ($4,000), and an award of costs for violation of Cal. Lab. Code § 226.
7 3. On behalf of the COLLECTIVE CLASS:
8 A) That the Court certify the Fourth Cause of Action asserted by the
9 COLLECTIVE CLASS as an opt-in Class Action under 29 U.S.C. § 216(b);
10 B) Issue a declaratory finding that DEFENDANT’s acts, policies, practices and
11 procedures complained of herein violated provisions of the Fair Labor
12 Standards Act;
13 C) That the PLAINTIFFS and the other members of the COLLECTIVE CLASS
14 recover compensatory damages and an equal amount of liquidated damages as
15 provided under the law and in 29 U.S.C. § 216(b).
16 4. On behalf of the AGGRIEVED EMPLOYEES:
17 A) Recovery of civil penalties as prescribed by the Labor Code Private Attorney
18 General Act of 2004.
19 5. On all claims:
20 A) An award of interest, including prejudgment interest at the legal rate;
21 B) An award of penalties and cost of suit, as allowable under the law. Neither
22 this prayer nor any other allegation or prayer in this Complaint is to be
23 construed as a request, under any circumstance, that would result in a request
24 for attorneys’ fees or costs available under Cal. Lab. Code § 218.5; and,
25 C) Such other and further relief as the Court deems just and equitable.
26 Dated: February 23, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK
27
By: /s/ Norman B. Blumenthal
28 Norman B. Blumenthal
Attorneys for Plaintiffs
-41- 10cv2255-JAH-NLS
1
DEMAND FOR JURY TRIAL
2
PLAINTIFFS demand a jury trial on issues triable to a jury.
3
4 Dated: February 23, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK
5
By: /s/ Norman B. Blumenthal
6 Norman B. Blumenthal
Attorneys for Plaintiffs
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-43- 10cv2255-JAH-NLS
FACSIMILE BLUMENTHAL, NORDREHAUG & BHOWMIK TELEPHONES
(858) 551-1232 2255 CALLE CLARA (858) 551-1223
LA JOLLA, CALIFORNIA 92037
GENERAL E-MAIL: bam@bamlawlj.com
Web Site: www.bamlawca.com
WRITERS E-MAIL: WRITERS EXT:

aj@bamlawlj.com 122
January 4, 2011
CA472
VIA CERTIFIED MAIL
Labor and Workforce Development Ecolab, Inc.

Agency c/o C T Corporation System
801 K Street, Suite 2101 818 W 7TH ST
Sacramento, CA 95814 Los Angeles, CA 90017
Re: Notice Of Violations Of California Labor Code Sections §§ 201, 202,

203, 204, 226(a), 226.7, 510, 512, 1174, 1194, 1197, 1198, Applicable
Industrial Welfare Commission Wage Orders, And Pursuant To California
Labor Code Section 2699.5.,
Dear Sir/Madam:
Our offices represent Plaintiff Robert Schuler, Jr. (the “Plaintiff”), and other
aggrieved employees in a class action against Ecolab, Inc. (“Defendant”). Plaintiff was
employed as a "Territory Manager" and was classified as exempt from receiving overtime,
however the job duties performed by Plaintiff and other aggrieved employees do not entitle
Defendant to claim any exemption from overtime for him or any of these other employees.
As a result, Plaintiff and these employees worked substantial amounts of overtime for which
they were unlawfully not properly compensated. Further, Plaintiff and other aggrieved
employees were not provided with all meal and rest periods due to them. As a consequence
of the aforementioned violations, the Plaintiff further contends that Defendant failed to
provide accurate wage statements to him, and other aggrieved employees, in violation of
California Labor Code section 226(a) and 1174. Said conduct, in addition to the forgoing,
violates Labor Code §§ 201, 202, 203, 204, 226(a), 226.7, 510, 512, 1174, 1194, 1197,
1198 and is therefore actionable under California Labor Code section 2699.3.
A true and correct copy of the Complaint filed by Plaintiff, which (i) identifies the
alleged violations, (ii) details the facts and theories which support the alleged violations, (iii)
details the specific work performed by Plaintiff, (iii) sets forth the people/entities, dates,
classifications, violations, events, and actions which are at issue to the extent known to
Plaintiff, and (iv) the illegal practices used by Defendant. This information provides notice
to the Labor and Workforce Development Agency of the facts and theories supporting the
alleged violations for the agency’s reference. Plaintiff therefore incorporates the allegations
of the attached Complaint into this letter as if fully set forth herein. If the agency needs any
further information, please do not hesitate to ask.
This notice is provided to enable the Plaintiff to proceed with the complaint filed in
the United States Southern District Court, case number 10cv2255 against Defendant as
authorized by California Labor Code section 2695, et seq. The pending class action lawsuit
consists of a class of other aggrieved employees. As class counsel, our intention is to
vigorously prosecute the class wide claims as alleged in the complaint, and to procure civil
penalties as provided by the Private Attorney General Statue of 2004 on behalf of Plaintiff
and all aggrieved California employees and class members.
Your earliest response to this notice is appreciated. If you have any questions of
concerns, please do not hesitate to contact me at the above number and address.
Sincerely,
Aparajit Bhowmik, Esq.
K:\D\NBB\Schuler v. EcoLab\Correspondence\l-paga-01.wpd
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-44- 10cv2255-JAH-NLS

Schuler v. Eco Lab (SAC)

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Case 3:10-cv-02255-JAH -NLS Document 17 Filed 02/23/11 Page 1 of 48

1 BLUMENTHAL, NORDREHAUG & BHOWMIK

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 4. Plaintiff Robert Schuler Jr. ("PLAINTIFF") was employed by DEFENDANT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 CALIFORNIA CLASS by not paying them in accordance with California law.

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 practices and policies of DEFENDANT violate California law.

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 deceptively having in place company policies, practices and procedures

1 and the members of the CALIFORNIA CLASS with an accurate

1 and unfairly failing to pay overtime to these employees who were

1 making appropriate class-wide relief with respect to the CALIFORNIA

1 litigation that would create the risk of:

1 systematically applied with respect to the CALIFORNIA CLASS;

1 in California during the CALIFORNIA CLASS PERIOD; and,

1 procedures in order to avoid the payment of overtime wages by misclassifying their

1 the applicable California Wage Order;

1 SUB-CLASS and will apply uniformly to every member of the

1 opposing the CALIFORNIA LABOR SUB-CLASS; or,

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 SECOND CAUSE OF ACTION

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 willful and not in good faith.

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 (b) Requires invention, imagination, originality or talent in a recognized field of

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 FIFTH CAUSE OF ACTION

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

1 the violations of the Labor Code was committed.

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

WRITERS E-MAIL: WRITERS EXT:

Labor and Workforce Development Ecolab, Inc.

Re: Notice Of Violations Of California Labor Code Sections §§ 201, 202,

Aparajit Bhowmik, Esq.

SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

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